The United Nations (UN) climate summit, ‘COP30‘, is being held this year from 10–21 November in the Brazilian Amazon city of Belém. This year’s climate negotiations will get underway against the backdrop of the recent International Court of Justice (ICJ) Climate Change Advisory Opinion (AO), a reduced (or absent) presence from the United States (US), and an emissions gap in countries’ climate pledges. This context frames the expectations for COP30 in Brazil this year, with implications for Australia if awarded hosting rights for COP31 next year. However, it remains to be seen if and how negotiating countries will take heed of the international legal obligations articulated in the ICJ AO, or if COP30 will be ‘business as usual’ with little progress on the transition away from fossil fuel emitting activities.
What is the role of Climate COPs?
Put simply, climate COPs (Conference of the Parties) are the international fora for countries to negotiate implementation of the international climate framework, including the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement.
This year’s COP negotiations face numerous challenges. The Trump Administration’s anti-climate policies and decision to exit the Paris Agreement (again) have made for geopolitical turbulence, with a US presence at COP30 unlikely. Global average temperatures hit more than 1.5 degrees Celsius above pre-industrial levels for the first time last year. And costly climate-fuelled disasters are multiplying, with severe heatwaves, fires and flooding affecting most continents this year.
The role and mandate of COPs in progressing climate action is strongly debated. A persistent criticism is that climate COPs have become too big and unwieldy, allowing fossil fuel domination rather than real climate action. Brazilian President, Luiz Inácio Lula da Silva, championed the decision to invite the world to the Amazon for COP30 as a way to showcase the massive rainforest’s vital role in absorbing carbon dioxide. But Belém’s remote location, limited infrastructure, and lack of hotel accommodation have seen prices to attend COP soar, putting it out of reach for smaller countries’ delegations and those who represent some of the most climate-vulnerable communities. These constraints on participation at COP30 could undermine the inclusive ‘Mutirão’ (or collective effort on climate change) sought by the Brazilian COP presidency.
At the same time, the role and mandate of COPs in international law is evolving. Some scholars have noted that COPs may be emerging as legal subjects in the international law process after references to the law-making role of COPs in the international climate law process by a series of recent international judicial decisions. The ICJ’s climate change AO explicitly discusses the role of climate COPs, noting their decisions may have legal effects both when treaties explicitly authorise it, but also when decisions constitute ‘subsequent agreements’ that can be used in interpreting countries’ climate obligations under those treaties ([184]). While an imperfect process, the annual climate COPs remain the best option for achieving agreement on climate commitments by countries on the international stage and, following the ICJ AO, may have significant legal effects on implementation.
2035 Climate Pledges
COP30 was supposed to be the occasion to celebrate countries’ ambitious pledges for new emissions cuts by 2035 to keep alive the Paris Agreement’s goal of no more than 1.5°C of global warming. Pledges – known as ‘Nationally Determined Contributions’ (NDCs) – were originally due to the UN climate secretariat in February, with an extension given to September after 95 per cent of countries missed the February deadline.
Australia unveiled its own 2035 NDC at the UN General Assembly in September, pledging an emissions cut of 62–70 per cent below 2005 levels. By the end of the General Assembly meeting, only half of global emissions were covered by a 2035 pledge – meaning the remaining emissions gap could be significant. A synthesis of NDCs released by the UN climate secretariat in late October suggests countries are bending the curve downward on emissions but still need to pick up the pace substantially. How COP30 reacts to this emissions gap and whether it issues a strong statement of concern or fails to meaningfully address this challenge will be a litmus test of whether countries are taking seriously their climate obligations.
The ICJ Advisory Option – Clarifying the International Legal Framework for Climate Action?
The recent ICJ AO confirms that breaches of States’ climate obligations constitute internationally wrongful acts – allowing for a strengthened legal framework for assessing countries’ climate commitments and action including the climate targets in their NDCs and their domestic regulation of fossil fuel activities.
The ICJ held that countries have a duty to prevent ‘transboundary environmental harm’ ([272]-[273]) which includes a requirement to regulate all fossil fuel emitting activities, including fossil fuel production. ‘Harm’ includes cumulative acts undertaken both by nations, and private actors ([276]) like corporations, within a nation’s jurisdiction. In a strong statement on state climate obligations, the Court outlined that failure to:
‘take action to protect the climate system from greenhouse gas emissions – including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies – may constitute an internationally wrongful act which is attributable to that [nation] State’ ([427]).
On NDCs, the ICJ held that the content of NDCs is not solely at countries’ discretion but rather that national targets must make an ‘adequate’ contribution to meeting the Paris Agreement’s 1.5°C temperature goal.
It remains to be seen how the ICJ’s ruling will affect countries’ negotiating positions at COP30 on the crucial question of ‘transitioning away from fossil fuels in energy systems’ as they committed to at COP28 in Dubai in 2023. If countries fail to make progress on fossil fuel phase-out, it may be that accountability is instead delivered via the courts. The ICJ AO makes clear that states can be held legally liable for failing to adequately regulate the fossil fuel activities of private actors. The sources of international obligations are multifaceted, ranging from the climate treaties, biodiversity agreements, the law of the sea and international human rights law. New judgments finding that the net zero targets of oil and gas majors amount to greenwashing and transnational lawsuits seeking to hold big carbon polluters liable for climate damage caused by their emissions add further legal weight to states’ climate commitments.
Climate Finance and the Road from Baku to Belem
Climate finance – money pledged by rich countries to help poorer countries reduce emissions, adapt to climate change or recover from climate disasters – is an ongoing issue at COPs. Finance for adapting to climate change and dealing with loss and damage will be the priority for many countries with events like Hurricane Melissa in Jamaica and Typhoon Kalmaegi in the Philippines once again demonstrating the enormous human and financial costs of climate disasters. The gap between current adaptation finance flows and countries’ needs is widening – with needs outpacing flows by 12-14 times according to the latest UN assessment. In the negotiating rooms, countries will be hoping to reach agreement on a global set of indicators to track progress on adaptation against the Paris Agreement’s ‘Global Goal on Adaptation’, including with respect to the provision of finance.
The Brazilian COP Presidency is also hoping to rally countries around another flagship funding initiative – the Tropical Forests Forever Facility. This would compensate countries for preserving tropical forests, with 20% of funds reserved for Indigenous peoples. The mechanism is set to launch at COP30 and could offer a breakthrough on addressing deforestation – a major driver of emissions – by flipping the economics in favour of conservation.
Last year at COP29 in Baku, a new climate finance goal was set for $300 billion to be raised annually by developed countries by 2035, with the aim of getting to $1.3 trillion in funding per year from both government and private sources over the same period. The ‘Baku-to-Belem’ roadmap to deliver on this bigger funding goal is due to be finalised at COP30. With the US out and the European Union (EU) wavering on climate action, all eyes will be on China and whether it will step into the leadership vacuum left by developed countries. The EU has only just reached agreement on a 2040 emissions reduction target and an “indicative” cut for 2035.
An Australian COP31 and International Legal Obligations
For many in Australia and the Pacific, a big question will be whether the summit sees the resolution of Australia’s long-running bid to host next year’s COP in Adelaide. Australia’s proposal to host COP31 with the Pacific has strong international support but a decision on hosting rights has been delayed by the presence of a rival bidder in Türkiye. If a consensus is not reached at COP30, the UN rules provide that the host city defaults back to Bonn in Germany where the UN climate secretariat is based.
If Australia is successful in its bid, focus can be expected to turn to Australia’s climate commitments and whether it is meeting its international climate obligations – and Australia is currently falling short. For instance, there is debate over whether Australia’s 2035 NDC pledging an emissions cut of 62–70 per cent below 2005 levels is aligned with the primary temperature goal of limiting global warming to 1.5°C above pre-industrial levels; a goal now recognised by the ICJ to be the consensus target rather than 2°C ([224]).
The ICJ AO also highlights environmental impact assessment (EIA) as an important mechanism by which nations can meet their obligations and prevent transboundary harm ([295]-[298]). Australia’s environmental laws currently provide limited assessment of climate change impacts. Proposed reforms to Australia’s environmental framework, the Environment Protection and Biodiversity Conservation Act 1999, do not appear to assess fossil fuel emissions in a manner that would meet Australia’s international climate obligations.
In light of the ICJ AO, Australia’s climate commitments may expose the government to risk of international legal liability. This could take the form of legal proceedings brought against Australia for inadequate climate action and may also encourage increased domestic challenges to environmental impact assessments conducted for fossil fuel projects. While Australia is not alone in facing increased attention over its climate obligations following the ICJ AO, its bid for COP31 means it will be under close scrutiny in Belém. Pacific neighbours, in particular, will be watching – and may reasonably expect stronger climate commitments from Australia before agreeing to co-host COP31.
Image by Roberto Huczek via Unsplash.
Jacqueline Peel
Jacqueline Peel is a Redmond Barry Distinguished Professor of Law at Melbourne Law School and the 2024 Kathleen Fitzpatrick Australian Laureate Fellow undertaking a 5-year program on global corporate climate accountability. She has published more than a dozen books on climate and environmental law topics, including her co-authored monograph on Litigating Climate Change in the Global South with Jolene Lin, and served in numerous professional leadership roles, including as the inaugural Director of the University of Melbourne’s Melbourne Climate Futures initiative, as a co-chair of ASIL’s Signature Initiative on Climate Change and International Law and as a coordinating lead author in Working Group III (Mitigation Policy) for the Intergovernmental Panel on Climate Change’s Seventh Assessment Report.
Roanna McClelland
Roanna McClellandis a Research Fellow at the Laureate Centre for Global Corporate Climate Accountability at Melbourne Law School. Roanna's research incorporates interdisciplinary and empirical research methods, spans the private and public sectors, and explores intersections between areas of law including climate, water, environment, human rights, social movements, and corporate accountability. Roanna has extensive experience across academia, policy and media, including as adviser to the Premier of South Australia, and to former Prime Minister Julia Gillard.
Suzanne Varrall
Suzanne Varrallis a Research Fellow with the Laureate Program for Global Corporate Climate Accountability at Melbourne Law School. Suzanne’s research interests include the interaction of international, transnational and national regulatory frameworks for achieving accountability. Her work focuses on business and human rights, international criminal law, and international humanitarian law. Suzanne’s experience across government, legal practice and academia provides unique insights into how policy, law and regulation intersect to address global challenges, particularly through the perspectives of due diligence and the state/corporate accountability nexus.
